Omaha & R. V. Ry. Co. v. Clarke

• Citation: 53 N.W. 970,35 Neb. 867
• Court: Supreme Court of Nebraska
• Decision Date: 03 January 1893
• Parties: OMAHA & R. V. RY. CO. v. CLARKE.

35 Neb. 867

53 N.W. 970

OMAHA & R. V. RY. CO.

v.CLARKE.

Supreme Court of Nebraska.

Jan. 3, 1893.

Syllabus by the Court.

1. In an action against a railway company for negligently, wrongfully, and unlawfully blowing off steam from its engine, whereby the plaintiff's horses were frightened and ran away, breaking his leg, etc., held, that the words employed implied that steam was blown off needlessly and unnecessarily, and, as no objection had been made to the petition by demurrer, it was sufficient after verdict.

2. A railway company, in the legitimate transaction of its business, has the right to use steam, and is not liable for the proper and necessary use of the same, even if it result in injury to others, as by frightening horses and causing them to run away. If, however, an engineer, within a city where teams are constantly passing, needlessly and unnecessarily opens the valves of his engine, and frightens such horses, and causes them to run away and commit injury, the company will be liable, provided the plaintiff is free from contributory negligence.

3. There being testimony which would warrant the jury in finding a verdict against the defendant, it was properly submitted to them, and the court did not err in refusing to direct a verdict for the defendant.

Error to district court, Madison county; NORRIS, Judge.

Action by Bernard Clarke against the Omaha & Republican Valley Railway Company. Plaintiff had judgment, and defendant brings error. Affirmed.J. M. Thurston, W. R. Kelly, and E. P. Smith, for plaintiff in error.

F. P. Wigton and E. F. Gray, for defendant in error.

MAXWELL, C. J.

This action was brought by the defendant in error against the plaintiff in error to recover for personal injuries, and on the trial the jury returned a verdict in his favor for the sum of $4,835, upon which judgment was rendered. The questions presented are many of them new to this court. The cause of action is set forth in the petition as follows: “That, at the time of the committing of the wrongs and injuries hereinafter complained of, the said defendant was, and still is, a corporation duly incorporated and organized under and pursuant to the laws of the state of Nebraska, and then and ever since owned and operated with its locomotive and cars a railroad leading from Columbus, in Platte county, Neb., to and through the city of Norfolk, in Madison county, Neb. That, at said time of the committing of the wrongs and injuries hereinafter mentioned, said city of Norfolk was a city of the second class, compactly built up, of the population of 5,000 inhabitants, and then had, and long prior and ever since has had, a street named ‘Norfolk Avenue,’ and also called ‘Main Street,’ passing through said city in its most central and business portion, and running east and west, which said street then was, long had been, and still is the principal street, roadway, and thoroughfare of said city. That at said time of the committing of the wrongs and injuries hereinafter complained of the defendant's said railroad and its side tracks crossed the said principal street, roadway, and thoroughfare, in the central and most public business portion of said city, running north and south. That, at said time of the committing of the wrongs and injuries hereinafter complained of, the said defendant, by its servants and agents, negligently, wrongfully, and unlawfully stopped, left, and permitted its locomotive engines to stand and remain headed south for a long time, viz., for the space of 20 minutes, on its side track, at the north margin of said principal street, at the point of the said crossing of the same by said railroad and side tracks, and at the same time negligently, wongfully, and unlawfully omitted and neglected to have at said crossing any flagman or person to give warning. That on the 13th day of August, 1888, the said plaintiff was engaged in hauling dirt, with his team of horses and wagon, upon said principal street, roadway, and thoroughfare in said city, to grade the same and other streets, and necessarily had to pass and repass over the said crossing of the same by said railroad and side tracks with his said team and wagon; and having unloaded his said wagon of dirt in one of the said streets, and the plaintiff then standing upon the dirt bed or planking floor of his wagon, necessarily, without any negligence,wrong, default, or want of due care on his part, drove his said team of horses and wagon west in the center of said principal street, roadway, and thoroughfare to pass over said crossing, when, as plaintiff had so driven his team upon said crossing, in the center of said principal street in front of said locomotive engine, and about 50 feet from it, so left standing as aforesaid, the said defendant, by its servants in charge of its said locomotive engine, negligently, wrongfully, and unlawfully, suddenly, and without warning to the plaintiff, let off and discharged steam from said locomotive engine, and from the cylinders thereof, in great volume, noise, and hissing sound, by means of which, and the several negligent, wrongful, and unlawful acts, omissions, and defaults of the defendant, its servants and agents, above stated, the said team of horses took fright, became unmanageable, ran away, and threw the plaintiff off from said wagon, down under the same, and ran said wagon, and the wheels thereof, over him, whereby he was greatly injured, his right leg, between the knee and ankle, was crushed, and both bones thereof broken in several places, and mashed into several pieces, the thigh of the same leg was bruised and injured, his left leg and thigh and ankle were bruised and injured, his head was cut and bruised, and he was otherwise bruised and injured, from which injuries he became and was, from thence hitherto, sick, sore, and crippled, and unable to carry on his usual work and business, and from which injuries he has, from thence hitherto, suffered great pain and anguish, and from which injuries he is permanently crippled and injured, and will continue to suffer pain and anguish for the remainder of his life; and that he has necessarily incurred, expended, and paid out for surgical and medical attendance, medicine, and nursing, in endeavoring to be cured of said injuries, the amount of $325, and that the plaintiff's entire damages in the premises are $10,000.” To this petition the railway company made answer, in substance, denying that its employes wrongfully, negligently, and unlawfully permitted its engine to stand on the track at the point indicated, or that there was no watchman at the crossing named; denies that the plaintiff was driving in the streets, and that the locomotive in question, suddenly, without warning, let off steam from the cylinders; with other special denials, which need not be noticed. It will thus be seen that the question of negligence of the company, and the contributory negligence of the plaintiff below, were fairly presented to the jury.

It is insisted with great earnestness on behalf of the plaintiff in error that the petition fails to allege actionable negligence, and we are referred to the case of Railroad Co. v. Loree, 4 Neb. 446. In that case it was held, in effect, that there was a failure to allege that the arrangement of material on the cars was unusual and unnecessary in the legitimate transaction of the business of the company. It was also held, in effect, that the words “scarecrow,” “horrid,” and “frightful appearance,” without stating in what respect, were not sufficient to raise an issue upon, and therefore, taking the whole petition together, it failed to state any dereliction of duty on the part of the company; and in our view the decision is correct. The petition in this case, however, charges that the railway crosses one of the principal streets of the city; that no flagman was placed there; that the plaintiff below, without notice or knowledge of the presence of the engine, drove to the center of the street to pass over the railway, and about 50 feet in front of a locomotive, when the person in charge thereof, “negligently, wrongfully, and unlawfully, suddenly, and without warning to the plaintiff, let off and discharged steam from said locomotive engine, and from the cylinders thereof, in great volume, noise, and hissing sound,” etc., by means whereof his horses were frightened and ran away. If steam was blown off “negligently, wrongfully, and unlawfully,” then it was unnecessary, and in violation of its duty. Had any question been raised upon the petition, a demurrer should have been interposed, and its legal effect determined, before going to trial. This was not done, but its sufficiency, in effect, is conceded; and, liberally construed, it states a cause of action. In saying this, we are not to be understood as deciding that where the cylinder cocks are opened, and steam necessarily blown off, and horses frightened thereby, the company is liable for the damages. Hahn v. Railroad Co., 51 Cal. 605;Beatty v. Railway Co., 58 Iowa, 242, 12 N. W. Rep. 332;Abbot v. Kalbus, (Wis.) 43 N. W. Rep. 367. In the case last cited, it is said, in effect, that the evidence did not show that the locomotive made any other than the usual noises, and all the cases cited by the plaintiff in error are to the same effect.

But it is said that, even if the law is as contended by the defendant in error, still there is no evidence in support of the charge.

One George R. Latimer, a civil engineer, called as a witness by the plaintiff below, testified that he was about 600 feet away from the engine at the time of the occurrence; that his attention was called to the scene of the accident by the escape of steam. “Question. You may state what attracted your attention, and what you saw. Answer. Well, I think there was several of us there together, and a remark something like this was made,--I think that the remark was made by some of us,--that that engine was making an unusual amount of...